Citation Nr: 0301470
Decision Date: 01/27/03 Archive Date: 02/04/03
DOCKET NO. 02-02 190 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
Entitlement to a certificate of eligibility for financial
assistance in the purchase of an automobile or other
conveyance, and adaptive equipment therefor.
Entitlement to a certificate of eligibility for assistance
in acquiring specially adapted housing or a special home
adaptation grant.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
INTRODUCTION
The veteran had active duty from March 1968 to April 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2001 decision of the
Department of Veterans Affairs (VA) Regional Office (RO)
in Houston, Texas.
FINDINGS OF FACT
1. The veteran has effectively lost the use of his lower
extremities, due to his service-connected low back and
bilateral knee disabilities, which, combined with the
service-connected residuals of a gunshot wound to the left
forearm, so affect the functions of balance or propulsion
as to preclude locomotion without the aid of braces,
canes, or a wheelchair.
2. The veteran is not service connected for disability
manifested by loss or loss of use of both feet, loss or
loss of use of one or both hands, or blindness in both
eyes; the service-connected disorders of his knees, left
forearm, and back, considered alone, are not of sufficient
severity so as to warrant a permanent and total disability
rating.
CONCLUSIONS OF LAW
1. The criteria for a certificate of eligibility for
financial assistance in the purchase of an automobile or
other conveyance, and adaptive equipment therefor, have
been met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 1991 &
Supp. 2002); 38 C.F.R. § 3.808 (2002).
2. The criteria for a certificate of eligibility for
assistance in acquiring specially adapted housing or a
special home adaptation grant have not been met. 38
U.S.C.A. §§ 2101, 5107 (West 1991 & Supp. 2002); 38 C.F.R.
§§ 3.809, 3.809a (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matters
The Board observes that recently enacted legislation has
eliminated the requirement for a well-grounded claim,
enhanced VA's duty to assist a claimant in developing
facts pertinent to his claim, and expanded on VA's duty to
notify the claimant and his representative, if any,
concerning certain aspects of claim development. See
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C.A. § 5100 et seq. (West Supp. 2002)). In addition,
VA recently promulgated regulations that implement the
statutory changes effected by the VCAA. See 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2002).
VA must notify the veteran of evidence and information
necessary to substantiate his claim and inform him whether
he or VA bears the burden of producing or obtaining that
evidence or information. 38 U.S.C.A. § 5103(a) (West
Supp. 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Review of the claims folder reveals compliance with the
new statutory and regulatory provisions. That is, by way
of the October 2001 rating decision, January 2002
statement of the case, and June 2002 supplemental
statement of the case, the veteran and his representative
were apprised of the applicable law and regulations and
given notice as to the evidence needed to substantiate his
claims. In addition, by letter dated in January 2002, the
RO explained the provisions of the VCAA, gave additional
notice of the evidence needed to substantiate the claims
on appeal, and asked the veteran to submit or authorize
the RO to obtain additional relevant evidence. The RO
informed the veteran that VA would assist him in obtaining
medical records, employment records, or records from other
Federal agencies that he identifies as being pertinent to
his claim and that VA would also provide a medical
examination, if necessary to make a decision on his
claims. He was also advised to submit release forms so
that the RO could request records treatment from all
health care providers who have treated him for his
disabilities.
With respect to the duty to assist, review of the claims
folder reveals that the RO secured service medical
records, VA and private medical records, and relevant VA
examinations. As discussed in detail below, the Board
finds that the evidence in this case is sufficient to
render a determination, such that an additional medical
examination or opinion is not needed.
Finally, the Board finds that the veteran has had ample
opportunity to present evidence and argument in support of
his appeals. Therefore, there is no indication that the
Board's present review of the claim will result in any
prejudice to the veteran. Bernard v. Brown, 4 Vet.
App. 384, 392-94 (1993).
Analysis
A certificate of eligibility for financial assistance in
the purchase of an automobile or other conveyance, and
adaptive equipment therefor
A certification of eligibility for financial assistance in
the purchase of one automobile or other conveyance in an
amount not exceeding the amount specified in 38 U.S.C.A.
§ 3902 (including all State, local, and other taxes where
such are applicable and included in the purchase price)
and of basic entitlement to necessary adaptive equipment
will be made where the claimant meets the requirements of
paragraphs (a), (b) and (c) of this section.
(a) Service. The claimant must have had active military,
naval or air service.
(b) Disability. (1) One of the following must exist and be
the result of injury or disease incurred or aggravated
during active military, naval or air service;
(i) Loss or permanent loss of use of one or both feet;
(ii) Loss or permanent loss of use of one or both hands;
(iii) Permanent impairment of vision of both eyes: Central
visual acuity of 20/200 or less in the better eye, with
corrective glasses, or central visual acuity of more than
20/200 if there is a field defect in which the peripheral
field has contracted to such an extent that the widest
diameter of visual field subtends an angular distance no
greater than 20 degrees in the better eye.
(iv) For adaptive equipment eligibility only, ankylosis of
one or both knees or one or both hips.
38 C.F.R. § 3.808.
Service connection has been established for low back
syndrome, rated 40 percent disabling; residuals of a
gunshot wound of the left forearm, rated 30 percent
disabling; post-traumatic stress disorder, rated
30 percent disabling; degenerative joint disease of the
right knee, rated 10 percent disabling; and degenerative
joint disease of the left knee, rated 10 percent
disabling; for a combined 80 percent evaluation. The RO
has also determined that the veteran is unemployable due
to his service-connected disabilities.
Applying the foregoing principles to the facts of the
present case, the Board finds that the evidence supports
the veteran's claim for a certificate of eligibility for
financial assistance in the purchase of an automobile or
other conveyance, and adaptive equipment therefor. The
record shows that the veteran is service-connected for low
back syndrome, rated 40 percent disabling. The available
medical evidence shows that his lumbar spine has limited
motion and positive bilateral straight leg raise testing,
although no radiculopathy is present. He is also service-
connected for degenerative joint disease of both knees,
which requires the use of braces and a cane. However, VA
has prescribed a motorized wheelchair because of the
difficulty the veteran has in using a cane or a regular
wheelchair due to his service-connected gunshot wound
residuals of the left forearm. The record shows that he
is unable even to stand for more than 10 minutes. Surgery
for the veteran's back disability has reportedly been
suggested in the past, although the most recent VA
examiner indicated that he did not feel that the veteran
would benefit greatly from such surgery. That examiner
also commented that he had "no qualms recommending
assistance with this adaptive equipment." Further, the
veteran's private physician has stated that he is unable
to walk and get around unassisted.
The Board finds that the evidence, at a minimum, gives
rise to reasonable doubt on this question. 38 U.S.C.A.
§ 5107(b). Accordingly, the claim for assistance in the
purchase of an automobile and adaptive equipment or for
adaptive equipment only, is granted.
A certificate of eligibility for assistance in acquiring
specially adapted housing or a special home adaptation
grant
A certificate of eligibility for assistance in acquiring
specially adapted housing under 38 U.S.C.A. § 2101(a) may
be extended to a veteran if the following requirements are
met:
(a) Service. Active military, naval or air service after
April 20, 1898, is required. Benefits are not restricted
to veterans with wartime service.
(b) Disability. The disability must have been incurred or
aggravated as the result of service as indicated in
paragraph (a) of this section and the veteran must be
entitled to compensation for permanent and total
disability due to:
(1) The loss, or loss of use, of both lower extremities,
such as to preclude locomotion without the aid of braces,
crutches, canes, or a wheelchair, or
(2) Blindness in both eyes, having only light perception,
plus the anatomical loss or loss of use of one lower
extremity, or
(3) The loss or loss of use of one lower extremity
together with residuals of organic disease or injury which
so affect the functions of balance or propulsion as to
preclude locomotion without the aid of braces, crutches,
canes, or a wheelchair.
(4) The loss or loss of use of one lower extremity
together with the loss of loss of use of one upper
extremity which so affect the functions of balance or
propulsion as to preclude locomotion without the aid of
braces, crutches, canes, or a wheelchair.
(c) Duplication of benefits. The assistance referred to in
this section will not be available to any veteran more
than once.
(d) "Preclude locomotion." This term means the necessity
for regular and constant use of a wheelchair, braces,
crutches or canes as a normal mode of locomotion although
occasional locomotion by other methods may be possible.
38 C.F.R. § 3.809.
A certificate of eligibility for assistance in acquiring
necessary special home adaptations, or, on or after
October 28, 1986, for assistance in acquiring a residence
already adapted with necessary special features, under 38
U.S.C.A. § 2101(b) may be issued to a veteran who served
after April 20, 1898, if the following requirements are
met:
(a) The veteran is not entitled to a certificate of
eligibility for assistance in acquiring specially adapted
housing under § 3.809 nor had the veteran previously
received assistance in acquiring specially adapted housing
under 38 U.S.C.A. § 2101(a). A veteran who first
establishes entitlement under this section and who later
becomes eligible for a certificate of eligibility under §
3.809 may be issued a certificate of eligibility under §
3.809. However, no particular type of adaptation,
improvement, or structural alteration may be provided to a
veteran more than once.
(b) The veteran is entitled to compensation for permanent
and total disability which (1) is due to blindness in both
eyes with 5/200 visual acuity or less, or (2) includes the
anatomical loss or loss of use of both hands.
(c) The assistance referred to in this section will not be
available to any veteran more than once.
38 C.F.R. § 3.809a.
With regard to the veteran's claim for assistance in
acquiring specially adapted housing or a special home
adaptation grant, however, the Board finds that the
preponderance of the evidence is against that claim. The
veteran is not service connected for disability manifested
by loss or loss of use of both feet, loss or loss of use
of one or both hands, or blindness in both eyes. In
addition, even assuming that his service-connected knee,
forearm, and back disorders constitute "residuals of
organic disease or injury" which, together, "so affect the
functions of balance or propulsion as to preclude
locomotion without the aid of braces, crutches, canes, or
a wheelchair," the evidence does not establish that those
disabilities alone are of sufficient severity so as to
warrant a permanent and total disability rating. Although
the veteran is currently in receipt of a total disability
rating based on individual unemployability due to service-
connected disability, that rating is based, in large part,
on significantly disabling PTSD. Consequently, because
the legal criteria for a certificate of eligibility for
assistance in acquiring specially adapted housing or a
special home adaptation grant have not been met, the claim
must be denied.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or
is in relative equipoise, with the veteran prevailing in
either event, or whether the preponderance of the evidence
is against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(b). In this case, the Board finds that
the preponderance of the evidence is against the veteran's
claim and that, therefore, the provisions of § 5107(b) are
not applicable.
ORDER
The claim for a certificate of eligibility for financial
assistance in the purchase of an automobile or other
conveyance, and adaptive equipment therefor, is granted,
subject to the law and regulations governing the award of
monetary benefits.
The claim for a certificate of eligibility for assistance
in acquiring specially adapted housing or a special home
adaptation grant is denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.